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Family Law

What Does the Court Look for When Determining Child Arrangements?

By | Family Law | No Comments

Determining the outcome of a child custody case isn’t easy on either parent, but it often helps to know what factors go into the court’s decision. While it’s impossible to predict the result of a case with certainty, there are a wide range of elements that are considered indicators of which parent is best fit to receive primary or sole care of a child.

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The Family Law Act requires the court to look at the following factors when ruling on what is in the best interest of the child:

The benefit of a child having a meaningful relationship with both parents

The objects underlying the Family Law Act are to ensure that a child has a meaningful relationship with both parents.  This is therefore a primary consideration when looking at the care arrangements for the child.

The need to protect the child from physical or psychological harm, abuse, neglect or family violence

It is important that any parenting arrangements do not put the child’s safety at risk.  This consideration is given the greater weight, even where it may conflict with ensuring a meaningful relationship with both parents.

The wishes expressed by the child

As the primary concern of the custody process is to determine what would be best for the child, their wishes are naturally taken into high consideration. Of course, the court must also consider factors such as the age and maturity level of the child as well as their ability to interpret the situation when expressing their wishes.

The nature and history of the child’s relationship with each parent

The current and previous relationship between the parent and child and the role of the parent in the child’s life will be factored into the decision making process.

How a change to the circumstances of the child may affect them

If the child has been living with one parent, the court will consider how being separated from that parent and/or other people associated with that parent (for example, grandparents, siblings or partners) would impact them.

The practical difficulties that may occur with certain custody arrangements

This could manifest in a number of different ways, such as financial, lifestyle or education barriers that might occur if one parent were to be granted majority custody.

Each parent’s ability to provide for the emotional and intellectual needs of the child

This can be of particular concern if the child had emotional or intellectual disabilities, as the court will seek to ensure that those needs are cared for appropriately.

Each parent’s attitude and demonstrated commitment to their role as a parent

If a parent has shown no evidence of being a dedicated parent to the child in question, the court will take this into careful consideration. 

If there is any history of family violence

This will be an important factor in determining who is most suitable to care for the child.

Any other factors that the court feels relevant to your specific circumstances

Each child custody case is different and prevents a unique set of family circumstances. The court’s will ensure that any relevant factors are considered before the final ruling is made.

If you are facing a child custody case, it’s always best to seek legal advice from experienced family lawyers. Contact Australian Family Lawyers today to speak to our dedicated team of family law specialists.

Property Settlement for De Facto Couples: What are Your Rights and Entitlements?

By | Family Law | No Comments

It’s important to understand your rights and entitlements as part of a de facto relationship. For almost the last decade, de facto couples across Australia have received similar rights and obligations as married couples, and so similar rules may apply for a separation for separated de facto couples as would be applied in a divorce.

Defining a de facto relationship

Before being able to understand your rights, you must first be able to define your relationship as de facto. This will help in any property disputes that may arise. A court will generally take into account things like how long you have been together, the ownership of your property, your financial involvement, the nature and extent of your common residence and so on. Whether there are children and the nature of their care and support will also be considered.

Property settlement: Time limits and applications

Under the Family Law Act, a party to a de facto relationship can bring an application for a property settlement within two years of the relationship ending. Outside this period, the application can only be made with court permission.  It is best to obtain legal advice early from an experienced family law solicitor to ensure the time limits are complied with, or for advice if you have any concerns that you may be outside the two year period. A qualified lawyer will be able to talk you through the process and ensure you are following the proper procedure to achieve your desired outcome.

Property adjustment conditions

There are of course conditions that must be met for a de facto party who wishes to apply for property adjustment or maintenance orders.

At least one of the following conditions must be met:

  • the de facto relationship must have lasted a minimum of two years
  • a child exists as a result of the de facto relationship (must be a child to both parties)
  • substantial contributions were made to the assets or the welfare of the family by the Applicant and failing to make an order would result in a serious injustice to the applicant
  • the relationship is registered

If at least one of these conditions is met, the Family Law Act provisions can apply, but you should check first with your lawyer as every situation is different and the amount of your entitlement, if any, can vary on a case by case basis.

At Australian Family Lawyers, we are here to help you. For advice or to book a consultation with one of our qualified and experienced lawyers, contact us today.

The Other Parent is Relocating and Wants to Take Your Child – What Are Your Rights?

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The thought of living states or countries apart from your child is distressing for most parents, however following divorce or separation it is possible that this scenario may present itself. The reality is that either party has the right to ask for relocation rights – however the final decision must be made by the court if the parents can’t agree. These situations are tricky, and because of this the Family Law Act doesn’t have any specific provisions for relocation scenarios. As such, the decisions are made on a case-by-case basis, but always on the basis of what is in the best interest of the child.

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If you are opposing the relocation, you may be wondering what the court will look at when making their decision. Here are just a few areas they will consider…

The reasons for relocation

The party asking for relocation rights must show compelling reasons for moving away with the child. Common motives include improved job opportunities in the proposed location or to further a new relationship that will contribute to the party’s happiness. Ultimately, the court must be satisfied that the reason for relocating is worth the impact it can have on the child and their relationship with the other parent.

The child’s opinion

If the child is of an age where they can express their opinion on the move, the court will take this into consideration. As mentioned previously, the concern of the court is to ensure that the child’s wellbeing will be preserved in the event of a relocation, so their wants are heavily considered in the decision-making process.

If the child can have a meaningful relationship with both parent’s post-relocation

The unfortunate reality of relocation matters is that the non-relocating parent will inevitably become more distanced from the child in the process. Because of this, the court will look at the likelihood of the child being able to maintain a meaningful relationship with the affected parent and the possible impact this can have on the child themselves.

Any incidences of family violence

In situations where the relocating party is attempting to escape past or present violence from their ex-partner, the court will take this into serious consideration. In this case, the relocating parent must make a compelling argument as to why it is best for the child to live far away from the non-relocating parent.

If you are facing a relocation issue, it’s always best to seek legal advice from experienced family lawyers. Contact Australian Family Lawyers today to speak to our dedicated team of family law specialists.

Understanding the Fundamentals of Spousal Maintenance

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The legal responsibilities surrounding divorce can be overwhelming to deal with it and difficult to understand, especially when you’re dealing with the emotional side of things at the same time. However, this doesn’t have to be the case when you have the right team of legal experts on your side. To ease your mind, we have developed a simple guide to understanding spousal support, what it is and why you might have to pay it for your ex-partner.

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What is spousal support?

In basic terms, spousal support or ‘maintenance’ is when an individual is required to provide ongoing financial support for their former partner following separation or the breakdown of a marriage or defacto relationship. This is done as per the Family Law Act, which states that partners have a duty to support and maintain each other to the extent that they are reasonably able to do so.

It’s important not to confuse spousal support with child support – child support is paid to support any children from the past relationship, while spousal support is intended for the ex-partner specifically. A court can reasonably order that both child support and spousal support are paid simultaneously.

When do you have to pay it?

If an application for Spousal maintenance is made, it must be applied for no later than 12 months after a divorce is finalised or within 2 years of separation for a de facto relationship.  These time limits are only extended in limited situations. It may be granted in cases where one party is unable to meet their reasonable needs and the other is in a financial position where payment is possible.

How is the amount calculated?

The court always aims to make a decision that is fair and equitable for both parties involved. The amount is determined based on a number of factors indicating the financial capacity of both parties, such as:

  • Your income, debts, financial assets and resources.
  • Your health and age.
  • Your ability to earn an income, and whether this has been affected by the marriage or de facto partnership.
  • The suitable standard of living and the reasonable expenses that are likely to be incurred.
  • In the case where children are involved, the court will consider who the children live with.

If you are looking to apply for spousal maintenance, it’s always best to seek legal advice from experienced family lawyers. Contact Australian Family Lawyers today to speak to our dedicated team of family law specialists.

Should You Sign a Prenuptial Agreement Before You Walk Down the Aisle?

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Prenuptial agreements – or ‘prenups’ as they are more commonly called – are often thought of as ‘un-romantic’ or just plain unnecessary unless you’re incredibly wealthy. But this couldn’t be farther from the truth.

A prenup is a great way to set out your financial wishes in the event that your marriage ends in divorce or if one party passes away. Today we delve into the specifics of these agreements, outline the pros and cons and consider what type of relationships it works best for.

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So what exactly is a prenup?

A prenuptial agreement is a legally binding contract created and signed by two people before they are married. This agreement usually provides the framework for how financial issues will be handled if the two parties ever decide to divorce. Areas such as property, inheritance, income and businesses owned by either party before the marriage or acquired during the marriage can be covered in this contract.

What are the benefits of signing one?

A prenup is a great idea for a number of reasons. If divorce occurs, it can…

  • Protect one party’s business from being subject to division or control by a former spouse.
  • Limit the amount of spousal support payable to the other party.
  • Protect the financial interests of people with substantial wealth.
  • Protect the inheritance rights of any children or grandchildren that exist from previous marriages or relationships.
  • Help your marriage start off with clear intentions and expectations, allowing you to go forward without worry.

And what are the drawbacks?

While there are many pros of getting a prenuptial agreement, there are also a few cons, such as…

  • If stated, it may void your right to any spousal inheritance that you would be entitled to under the law.
  • If you contribute to the success of your spouse’s business, but are not entitled to any part of said business as per the agreement, you will not be able to claim anything upon divorce.
  • Some people feel that beginning a marriage with this contract can indicate that there is a lack of trust.
  • As it is an agreement entered into outside of Court, it is not possible to guarantee that the agreement will be binding unless and until one of the parties challenges it in Court if the relationship breaks down. However, it is one of the best forms of protection, provided that it is drafted by a specialist family lawyer.

So, what type of relationship does it work best for?

In theory, a prenuptial agreement can work for every type of marriage where there are financial assets already established prior to your union, or if there is an expectation of a future large inheritance from family members. If you don’t have any property, businesses, inheritance or anything else to protect, there might not be a need to draw up such a contract. But if you do, it’s best to sit down with your partner and determine whether such an agreement is right for your circumstances.

3 Common Misconceptions About Family Law

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There are many sensitivities around divorce and separation, but it is important to know your rights and what you can expect from the legal process. When entering this process, many people assume certain things which may not necessarily apply to their situation. Every case is different and varying factors involved can affect the outcomes regarding financial disputes and children. Read on to see a few family law myths dispelled.

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“When we separate, my partner is automatically entitled to half our assets”

As every case is different, there is no ‘one size fits all’ approach to division of assets. There are many factors to be considered when reviewing how assets should be distributed which is outlined in the Family Law Act 1975. These factors must be considered after the breakdown of a marriage or even a de facto relationship.

A few factors include whether there are children from the relationship, whether the parties had assets before the relationship commenced, whether one or both parties made special contributions during the relationship (eg. inheritance), each party’s age and health, and more. You should contact your lawyer to find out the full list of these factors and how it is likely to affect your specific situation.

“Every case is entitled to a 50/50 child custody outcome”

While this may be a good outcome for some families, it may not apply for all. The children’s best interests are paramount as defined in the Family Law Act, and will always be top of mind when the Court is considering any child custody case. Sometimes spending an equal amount of time with each of the parents will not be in the child’s best interests or may not be practical to occur for their health, schooling, religion and so on. If you are worried about the long-term parenting arrangements for your children or have any questions about the decision, you should seek legal advice.

“To have a property settlement, we must be divorced”

Contrary to widespread belief, it is not necessary to be divorced to have a property settlement. After you separate and prior to being divorced, both parties can negotiate and formalise a property settlement at any stage. The formal process of ending a marriage is a divorce, and this can only be applied for by both parties until after they have been separated for 12 months.

At Australian Family Lawyers, we deal with family law services in divorce and separation, property settlement, children’s matters, spousal maintenance, same-sex and de facto couples, intervention orders, child support, mediation and more. Contact us to make an appointment and find out more today.

What You Need to Know About Defacto Relationships

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It can be difficult sometimes to know how your relationship is defined by the law if you are not legally married. Wondering if your current or past relationship is defined as de facto? Are you unsure of what this means or how it works in a court of law if you have financial disputes or children involved? See below some useful information on this topic, which may help you navigate the legal landscape and help you discern what you are entitled to in a de facto relationship.

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What is a de facto relationship?

The Family Law Act 1975 defines a de facto relationship as you and your partner, who may be of the same or opposite sex, having a relationship as a couple living together on a genuine domestic basis. If you were legally married to one another or related by family, your relationship is not considered de facto.

The Act sets out a number of additional factors to work out whether they have a relationship as a couple.  These include, but are not limited to, the length of the relationship, whether a sexual relationship exists, whether they have children together and the mutual commitment to a shared life, just to name a few.  Just because one or some of these factors exist doesn’t mean that it is a de facto relationship, and just because one or some of the factors don’t exist doesn’t mean it isn’t a de facto relationship.  Each case is different and it is best to get specialised legal advice to work out whether a de facto relationship exists.

Financial Disputes in de facto relationships

It can be said that while you are living with someone and in a relationship, this dynamic and financial situation can be similar to a circumstance where you are married. If you share assets, bank accounts and so on, things can become messy when the relationship breaks down. Parties to an eligible de facto relationship which has broken down for whatever reason can apply to the Family Court or the Federal Circuit Court to have financial matters determined in virtually the same way as a married couple would.

This may benefit you if you are in a situation where financial disputes arise. You must, however, apply for de facto financial orders within two years of the breakdown of your relationship because after this time you will need the Court’s permission to apply.

De facto relationships and children

It can always be more complicated to settle disputes when children are involved and arguments are likely to arise. In a similar fashion to handling financial disputes, the Family Court and the Federal Circuit Court deal with issues related to the children of de facto relationships in the same way as married couples. This can help when dealing with issues such as disputes regarding parenting arrangements, relocation and travel and so on.

At Australian Family Lawyers, we are here to help you and answer any questions you may have about family law. From separations to property settlements and relocation, we are the experts. Contact us today to book an appointment.

How to Ensure Your Divorce Runs as Smoothly as Possible

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Divorce Process

Getting a divorce is often considered one of the most difficult times in a person’s life – but there are a few things you can do to try and make the load much lighter. The following tips aim to simplify the process as much as possible, while also attempting to alleviate the emotional burden that this time can have on all parties involved.

Consult a lawyer

The first thing you should do when getting a divorce is seek the counsel of a qualified lawyer. Even if you are on great terms with your ex-partner, the simple act of having an experienced professional guide you through the process can ensure you are better equipped to face what is down the road. Remember, getting a divorce is often considered the ‘easy’ part when it comes to the legalities – the real issues can start to surface when you begin the settlement process, and having someone who can help you navigate these things can make a profound difference.

Consider alternative methods of dispute resolution

Don’t be fooled by all the movies where an aggrieved husband or wife boldly tells their ex-spouse ‘I’ll see you in court’ – litigation is something you want to avoid as much as possible. Not only does it stretch the process out over a long period and cost all parties an extremely large amount of money, but it is likely to put you and your family under more emotional strain. Alternative dispute resolution processes such as mediation, arbitration and negotiation can achieve desirable outcomes by facilitating open communication between all parties. If possible, you should aim to explore these avenues before opting for litigation as they are less time consuming, quicker and less costly.

Try to communicate openly

There’s no doubt that during a divorce process, emotions are often running high. It’s common for all parties to feel sadness, anger, anxiety and confusion and these things can influence one or both parties to act in ways that may not necessarily be in their best interests. Going into your divorce, it’s good to make a conscious effort to communicate openly and honestly about all matters. This is especially important if you are undertaking any of the alternative dispute resolution options mentioned above, as these rely on a good foundation of communication to achieve a positive result that both parties are happy with.

Keep the focus on the kids

Divorce isn’t only difficult for the two married parties – for any kids involved, it can be a tumultuous and confusing time as well. If you and your partner have children, it’s important to ensure that they feel as secure as possible throughout this process. Talking with your partner about how to approach this area is best, as it will allow you to agree on a plan that will hopefully minimise the effect it may have on your little ones.

If you are facing issues related to family law, don’t hesitate to contact our Melbourne office on 03 9993 7184 or our Sydney office on 02 9186 8135.

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Child-Support

Child Support Options

By | Family Law | No Comments

Child Support

Most parents find child support a source confusion.   Commonly they ask us if they have to go through the department to human services, child support (CSA) or not? The first point is that parents are expected to support their children to the best of their ability. Here is an overview of some child support options for you to consider:

(1) Private arrangement

Here parents agree how the child’s care costs will be paid or shared in the future.

Some couples in their property settlement might agree to put money aside for certain expenses such as private school fees or they might set up a formal trust for example for the children’s education. Other couples might agree as to which parent will be responsible for paying certain expenses. An example might health insurance premiums and medical costs, extra curricular activities or the costs such as school uniforms, excursions etc.

(2) Child Support as Assessed

If parents cannot agree then a parent might apply for child support through the Child Support Agency who may issue a child support assessment. A parent who has applied for Centrelink or means tested benefits must have a child support assessment issued.

Child support as assessed takes into account each parent’s income and the number of nights that the child is in each parent’s care which is then included in the assessment formula used by CSA. Child support is generally insufficient for extracurricular activities,  dental and medical treatments eg orthodontic treatment or private tuition/schools fees and the like. If the other parent will not pay more than child support as assessed then a change of assessment application can be made through the Child support agency.

To bring that application, the applicant needs to satisfy one or more of the 10 grounds for that change of assessment some of which include costs in spending time with  a child; if the child support assessment is unfair because of the income, earning capacity, property or financial resources of the parent or the type of education or training that the parents agreed their child would receive such as private schooling.

If the application is successful then the child support agency can increase the  assessable child support.   That mean the parent receiving child support will receive more child support on account of the higher care costs. If the decision is disputed then it can be reviewed  by the CSA Registrar. That decision can appealed to the Administrative Appeals Tribunal and/or an application made to the Federal  Circuit Court of Australia for child support orders but within the specified time limit.

Sometimes a child support order might be appropriate especially if a paying parent resides overseas and in a country which does not have reciprocal child support arrangements in place.

Child support agreements

To give greater certainty and where child support as assessed will not be sufficient eg the child attends a private school or has higher health care costs, then a child support agreement might provide more certainty.

There are two types – Binding or Limited.

A binding child support agreement enables any amount to be paid. It can include lump sum child support in the form of property to be credited fully against any child support liability. Each parent must get independent legal advice before the agreement is signed. Each solicitor must sign that certificate of advice and it should be registered with CSA. A binding child support agreement is serious transaction and need careful drafting and consideration as to what events in the future might arise and should terminate it. It can only terminate by a new binding child support agreement which expressly terminates the former or court order. As the threshold findings to support such an order are high, they should not be rushed into.

They cannot be varied – to vary it the parties must enter into a new binding child support agreement to specifically terminate it and set out the newly agreed terms. They do offer clear advantages too – such as greater certainty in terms of obligations to pay and receive certain payments, can provide for any amount of child support and they do not require a child support assessment to be issued.  They work well for many families.

A limited child support agreement offer more flexibility (but less certainty as a result). The parties do  not require legal advice before entering into it. There must be a child support assessment issued  for the registrar to accept it for registration.

It can end if both parties agree to end it in writing, after 3 years or more and a party request CSA end it and if the paying parent is paying 15% of more than the notional assessment and asks CSA to end it.

If you need child support advice, please email us [email protected] or call 03 9993 7184 (Melbourne) or 02 9186 8135 (Sydney).